In re the Paternity of Snyder, M.S. v. D.A.

Feb 19 2015, 9:31 am

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Carlos I. Carrillo Gregg S. Theobald
Lafayette, Indiana Lafayette, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In re the Paternity of Snyder, February 19, 2015
Court of Appeals Cause No.
M.S., 79A02-1407-JP-497
Appellant-Petitioner, Appeal from the Tippecanoe Circuit
Court; The Honorable Donald L.
v. Daniel, Judge;
79C01-1304-JP-20
D.A.,
Appellee-Respondent.

May, Judge.

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[1] M.S. (Father) appeals the order denying his request to modify parenting time

with his daughter, M.A. We affirm in part and reverse in part.

Facts and Procedural History
[2] Father and D.A. (Mother) are the parents of M.A., born May 6, 2008. Mother

and Father lived together until M.A. was approximately six months old, at

which time Father moved to Texas, where he has remained during the relevant

proceedings. On March 13, 2012, Mother petitioned for and was granted a

protective order against Father. On April 3, 2013, Father filed a petition to

establish paternity and custody.

[3] On September 12, 2013, after several filings and hearings on the matter, the trial

court entered an order establishing child support, denying Father’s request to

change M.A.’s name, and allowing Mother and Father to claim M.A. on their

taxes in alternate years. The trial court also approved the parties’ agreed order

regarding Father’s visitation with M.A. The order provided visitation would be

supervised by therapist Theresa Slayton and it modified the protective order to

permit the visitation.

[4] On March 10, 2014, Mother filed a petition to extend the protective order,

which was later dismissed at her request. On June 30, 2014, the trial court held

a hearing regarding all pending matters in the paternity action, during which

Father made argument to extend his parenting time, change therapists, allow

regular communication with M.A. via Skype, and allow Father to tell M.A. he

is her father. The same day, the trial court entered an order maintaining the

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 status quo of therapeutic visitation for one hour with Slayton, allowing Father

weekly communication with M.A. via Skype at Slayton’s office, and denying

Father’s requests to change therapists and tell M.A. he is her father.

Discussion and Decision
[5] The trial court entered findings of fact and conclusions of law. Therefore,

we must determine whether the evidence supports the findings and
whether the findings support the judgment. The judgment will be
reversed only when clearly erroneous. To determine whether the
findings or judgment are clearly erroneous, we consider only the
evidence favorable to the judgment and all reasonable inferences
flowing therefrom.

Speaker v. Speaker, 759 N.E.2d 1174, 1179 (Ind. Ct. App. 2001) (citations and

internal quotation marks omitted). We will not reweigh the evidence or

reassess the credibility of the witnesses before the court. Speed v. Old Fort Supply

Co., Inc., 737 N.E.2d 1217, 1219 (Ind. Ct. App. 2000). Rather, we will affirm if

there is sufficient evidence of probative value to support the decision, viewing

the evidence most favorable to the judgment and the reasonable inferences

drawn therefrom. Id.

[6] Because the court’s entry of findings was sua sponte, we review any issue on

which the court has not made findings under a general judgment standard.

Myers v. Leedy, 915 N.E.2d 133, 140 (Ind. 2009). We affirm a general judgment

on any legal theory supported by the evidence. Id.

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 1. Modification of Existing Restrictions

[7] “The court may modify an order granting or denying parenting time rights

whenever modification would serve the best interests of the child.” Ind. Code §

31-17-4-2. In determining if modification is appropriate, the trial court

considers the “mental and physical health of all individuals involved.” Ind.

Code § 31-17-2-8.

[8] We review1 the trial court’s order as to these proposed modifications as follows:

We review custody modifications for abuse of discretion, with a
preference for granting latitude and deference to our trial judges in
family law matters. In the initial custody determination, both parents
are presumed equally entitled to custody, but a petitioner seeking
subsequent modification bears the burden of demonstrating that the
existing custody should be altered. When reviewing a trial court’s
decision modifying custody, we may not reweigh the evidence or judge
the credibility of the witnesses. Instead, we consider only the evidence
most favorable to the judgment and any reasonable inferences
therefrom.

Julie C. v. Andrew C., 924 N.E.2d 1249, 1256 (Ind. Ct. App. 2010) (citations

omitted).

1
Father asserts our standard of review should be based on the court’s placement of restrictions on his
parenting time, which would impose on Mother a burden to prove Father’s parenting time should be
restricted. We disagree. While a party requesting a restriction on parenting time initially has the burden to
prove endangerment or impairment as required by statute, In re Paternity of P.B., 932 N.E.2d 712, 719 (Ind.
Ct. App 2010), Father agreed to some restrictions as part of the Settlement Agreement. His petition to
remove the restrictions is a request to modify that original custody agreement. Thus, we apply the standard
of review for modification to the trial court’s order as to these restrictions.

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[9] The trial court ordered:

1. [Father’s] parenting time shall continue to be supervised by a
therapist.

2. [Father] and [M.A.] shall have the opportunity to communicate
by Skype once each week for up to fifteen minutes.

3. Said Skype visits will be supervised by Theresa Slayton or a
member of her staff.

4. Each party shall pay one half of the cost of the Skype calls and
the supervision fee.

*****

7. [Father’s] request that the Court order a different therapist is
denied.

(App. at 41-42.)

[10] At the time of the order in the instant case, Father had attended six therapeutic

visitation sessions with M.A. since the September 12, 2013, order. The

therapist, Slayton, testified visits were going well but expressed concern

regarding the consistency of Father’s visits. Father had seen M.A. only five

hours in nine months, missed one visit, and indicated he might take a job

overseas, which would effectively terminate the therapeutic visitation with

M.A. for an extended period of time.

[11] Father agreed to the initial restrictions on his parenting time and did not appeal

the 2013 order continuing those restrictions. He has not demonstrated the
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 findings were unsupported by evidence and he has not demonstrated there was

a change in circumstances to warrant a change in parenting time beyond the

modification that now permits Father to talk to M.S. via Skype one time each

week. His argument is an invitation for us to reweigh the evidence, which we

cannot do. See Speed, 737 N.E.2d at 1219 (court on appeal cannot reweigh the

evidence supporting the trial court’s findings).

2. Order of New Restriction

[12] However, we find error regarding the trial court’s denial of Father’s request to

tell M.A. he is her father. In parenting time disputes, our collective goal in

Indiana is to seek an environment in which a child can have a “‘well-founded

relationship with each parent.’” Hatmaker v. Hatmaker, 998 N.E.2d 758, 761

(Ind. Ct. App. 2013) (quoting Appolon v. Faught, 796 N.E.2d 297, 300 (Ind. Ct.

App. 2003)). This goal recognizes “[t]he right of non-custodial parents to visit

with their children [as] a ‘sacred and precious privilege.’” Id. Nonetheless,

parenting time in paternity cases can be restricted under Indiana Code § 31-14-

4-1(a), if the court finds that “parenting time might: (1) endanger the child’s

physical health and well-being; or (2) significantly impair the child’s emotional

development.” (emphasis added). We review these decisions for an abuse of

discretion. Id. “A trial court abuses its discretion when its decision is clearly

against the logic and effect of the facts and circumstances before the court or if

the court has misinterpreted the law.” Id.

[13] Father’s parental status is determined by statute; that is, once paternity is

established or acknowledged, Father is M.A.’s birth parent. Ind. Code § 31-9-2-
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 10. Once paternity has been established, the named father receives rights and

responsibilities, including becoming subject to a child-support order. Ind. Code

§ 16-37-2-2.1. Indeed, parental rights and responsibilities are so important that

once paternity is established it may not be disestablished, unless fraud, duress,

or a material mistake of fact is shown to have existed at the time the paternity

affidavit was executed. In re Paternity of T.M., 953 N.E.2d 96, 98 (Ind. Ct. App.

2011), trans. denied; See also Ind. Code § 16-37-2-2.1(l).

[14] In this case, the record reveals that Father’s paternity was established, and a

support order was entered. In addition, Father’s parenting time was initially

restricted because of an allegation of domestic violence against Mother. Since

the trial court’s initial order, Father has exercised infrequent visitation that is

supervised by Slayton. Slayton believes that Father has not “earned the title” of

“dad[]”; that this revelation would result in six-year-old M.A. “spending more

time trying to figure out who everybody is at her age[]”; and Father’s desire to

inform his daughter of his status should be used as leverage to move him

toward more frequent visits. (Tr. at 8.) While this goal is laudable, it is not a

legally sufficient basis for denying a Father the ability to proclaim his status to

his child.

[15] There is no evidence in the record suggesting how M.A.’s physical health or

emotional development would be impaired by telling M.A. that Father is her

biological father. See Ind. Code § 31-14-14-1(a); Farrell v. Littell, 790 N.E.2d 612

(Ind. Ct. App. 2003) (statute requires specific finding of physical endangerment

or emotional impairment prior to imposing restriction). As such a finding is

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 required by statute, the trial court erred when it denied Father’s request to tell

M.A. he is her father, and we accordingly reverse that portion of the trial

court’s decision.

[16] Affirmed in part, reversed in part.

Barnes, J., and Pyle, J., concur.

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